Tomorrow, the United States Supreme Court will hear arguments in a crucial case called Espinoza v. Montana.
The goal of the Espinoza plaintiffs is to strike down state laws that prohibit public funding for religious schools.
This is a case that could not only erase the line between church and state but could actually compel states to fund religious schools. It would require states to fund religious schools of every kind, and no one knows who will determine what is a legitimate religious school. It would divert funding from public schools to support students enrolled in religious schools, now and in the future.
The plaintiffs are represented by the libertarian Institute for Justice. Its efforts on behalf of school choice have been funded over the years by anti-public school activists like the Walton Family Foundation (which has launched one of every four charter schools in the U.S.), the Bradley Foundation of Milwaukee (which fought in court to establish vouchers in that city), the DeVos family, and the Koch Foundation.
Twenty or thirty or forty years ago, the Supreme Court would have dismissed this case out of hand. In the past, the Court ruled that states should pay for ancillary matters like transportation and textbooks in religious schools, but not tuition.
But the Supreme Court today has a 5-4 conservative majority. Many conservative justices in the past were moderates compared to those now on the court. The two justices appointed by Trump are religious extremists who can be counted on to rule in favor of access to public funding for religious groups as well as their “freedom” to discriminate against those groups who offend their religious beliefs.
For more about this case and its ties to the evangelical right and anti-union funders, read this article that appeared in In These Times.
The Washington Post described the case:
KALISPELL, Mont. — It is a blessed time at Stillwater Christian School, where Scripture adorns the gymnasium wall, enrollment is climbing and Head of School Jeremy Marsh awaits the four new classrooms that will be built in the spring.
It is a place that embraces the beliefs that sinners avoid eternal condemnation only through Jesus Christ, that a marriage consists of one man and one woman and that “human life is of inestimable worth in all its dimensions . . . from conception through natural death.”
“The religious instruction isn’t just in little pockets of Bible class,” Marsh said. “It really comes out as we are learning in all classes.”
If a family craves Stillwater’s academic rigor but not its evangelism, Marsh said he will gently advise that “this might not be the place for them.”
Parents who believe religious schools such as Stillwater absolutely are the places for their children are at the center of what could be a landmark Supreme Court case testing the constitutionality of state laws that exclude religious organizations from government funding available to others. In this case, the issue rests on whether a scholarship fund supported by tax-deductible donations can help children attending the state’s private schools, most of which are religious.
Arguments are scheduled for Wednesday.
A decision in their favor would “remove a major barrier to educational opportunity for children nationwide,” plaintiffs said in their brief to the Supreme Court. It is part of a movement by school choice advocates such as Education Secretary Betsy DeVos to allow government support of students seeking what she recently called “faith-based education.”
Said Erica Smith, a lawyer representing the parents: “If we win this case, it will be the U.S. Supreme Court once again saying that school choice is fully constitutional and it’s a good thing and it’s something parents should have. And that will provide momentum to the entire country.”
Randi Weingarten, president of the American Federation of Teachers, said such a ruling would be a “virtual earthquake,” devastating to the way states fund public education.
And Montana told the court that, as in 37 other states, it is reasonable for its constitution to prohibit direct or indirect aid to religious organizations.
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The No-Aid Clause does not prohibit any religious practice,” Montana said in its brief. “Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”
But Montana is being called before a Supreme Court increasingly skeptical of such stark lines between church and state. A majority of justices in 2017 said Missouri could not ban a church school from requesting a grant from a state program that rehabilitated playgrounds. They have since been joined by Justice Brett M. Kavanaugh, who has signaled other such restrictions deserve the court’s attention.
The Montana case is prompted by a 2015 decision by the state’s legislature to create a tax-credit program for those who wanted to donate to a scholarship fund. The program allowed dollar-for-dollar tax credits to those who donated up to $150 to an organization that provides aid to parents who want to send their children to private school.
About 70 percent of qualifying private schools in Montana are affiliated with a religion, so that meant at least some of the money would go there.
And that conflicts with a section of the state constitution that prohibits public funds for “any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Litigation followed, and the Montana Supreme Court ultimately struck down the program — for religious and nonreligious private schools — and said Montana’s provision did not violate religious protections in the U.S. Constitution.
The Montana Constitution that is now being challenged was adopted in 1972.
The amicus briefs supporting Montana and opposing public support for religious schools are attached here.
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